or information and is supported by the evidence), we reverse the judgment and direct the trial court to enter judgment of conviction for the permissive lesser included offense of battery. See § 924.34; Michelson v. State, 927 So.2d 890, 893 (Fla. 4th DCA 2005) (finding no constitutional prohibition against remand for conviction of a lesser included offense when the jury specifically has found the existence of all elements of the offense and where the error causing remand does not disturb those findings); Baker v. State, 578 So.2d 37, 39 (Fla. 4th DCA 1991) (stating jury may be instructed on a category two crime when the information alleges the elements of the crime). Reversed and remand with directions.
See Goodwin v. State, 751 So.2d 537, 546 (Fla. 1999). Under that standard, inadvertent and adequately-cured comments by a judge are not grounds for a mistrial. See Baker v. State, 578 So.2d 37, 38 (Fla. 4th DCA 1991). The record before us reveals the trial court's reference to a "defect" in the seats was inadvertent and not calculated to serve as a comment on the evidence.
Under an abuse of discretion standard, inadvertent and adequately-cured comments by a judge are not grounds for a mistrial. See Baker v. State, 578 So. 2d 37, 38 (Fla. 4th DCA 1991) ("[T]he inadvertent comment in the instant case does not involve a trial judge's improper comment upon the testimony of witnesses or departure from an impartial role."). It is clear on the record before us that the trial court's reference to the seat being defective was inadvertent and not calculated to serve as a comment on the evidence.
In contrast, this court has found an information sufficient to allege both an attempted robbery and the lesser-included crime of battery when it stated that the defendant committed an attempted robbery "`and in such attempt did an act toward the commission of such offense towit: threaten or commit a battery on [the victim] with the intent to unlawfully, by force, violence, assault or putting in fear, take away from the person or custody of [the victim] certain property[.]'" Ross v. State, 373 So.2d 41, 41 (Fla. 2d DCA 1979); see also Baker v. State, 578 So.2d 37, 39 (Fla. 4th DCA 1991) (stating "[t]he information in the instant case adequately alleged that appellant intentionally caused bodily harm to another," thus supporting conviction for battery as a lesser-included offense to strong-arm robbery). In light of the holding in Wilson, 786 So.2d at 633, the use of the word "force" in the petition charging N.H.M. with robbery did not give adequate notice to N.H.M. that he faced adjudication for the crime of battery.
Cf. Perez v. State, 22 Fla. L. Weekly D243, D243 (Fla. 3d DCA Jan. 22, 1997)("[I]t is always wrong to call . . . defendants names by citing them as examples of a criminal `type.'");Lopez v. State, 555 So.2d 1298 (Fla. 3d DCA 1990)(repeated references to defendant as a drug dealer who was lying on the stand is improper argument). As to the crack cocaine remark, we agree with Sandoval that the argument was irrelevant and amounted to improper argument concerning the interest of the people of Florida to be safe in their environment, see Kirtsey v. State, 649 So.2d 946, 947 (Fla. 3d DCA 1995); Baker v. State, 578 So.2d 37, 39 (Fla. 4th DCA 1991); Wingate v. State, 232 So.2d 44 (Fla. 3d DCA), cert. denied, 237 So.2d 764 (Fla. 1970), cert. denied, 400 U.S. 994 (1971), and to an inappropriate request that the jury "send the community a message." See Crump v. State, 622 So.2d 963 (Fla. 1993); Harris v. State, 619 So.2d 340, 343 (Fla. 1st DCA 1993).
SCHWARTZ, Chief Judge. Although the opening of the prosecutor's final argument was improper, see Baker v. State, 578 So.2d 37, 39 (Fla. 4th DCA 1991); Salazar-Rodriguez v. State, 436 So.2d 269 (Fla. 3d DCA 1983), and the objection to it was incorrectly overruled, we are convinced that the error was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); State v. Murray, 443 So.2d 955 (Fla. 1984); Hall v. State, 444 So.2d 1019 (Fla. 3d DCA 1984).